East Timor`s Land Tenure Problems - Robert H. McKinney School of

Transcription

EAST TIMOR'S LAND TENURE PROBLEMS: A
CONSIDERATION OF LAND REFORM PROGRAMS IN
SOUTH AFRICA AND ZIMBABWE
Amy Ochoa Carson*
INTRODUCTION
This Note suggests ways to alleviate East Timor's' land tenure problems.
These problems resulted from the country's complicated history.2 In 2002, East
Timor was given its long-awaited independence and became the world's newest
nation.3 Since being discovered in the 1500s, East Timor was originally a
Portuguese colony 4 and, more recently, an Indonesian colony. 5 Now that East
Timor has gained its independence, it faces many obstacles before it can
become a successful, self-sufficient nation. As of 2005, the country had one of
the lowest real gross domestic products (GDP) in the world at eight hundred
dollars.6
A massive problem East Timor must overcome is its complicated and
* J.D. Candidate, Indiana University School of Law-Indianapolis, 2007.
B.A., Hanover
College, 2004.
1. In this Note the name East Timor will be used. There are, however, various names for
the country of East Timor:
The name most common in the English-speaking West is really a tautology since
Timor is just the Indonesian word for 'east'. So East Timor is East East, and in
fact the Indonesians referred to the province as Timor Timur or, in its shortened
version, Tim Tim....
• * * [East Timor is also called] Timor Leste, which is East Timor in
Portuguese. Or Timor Lorosae (also Loro Sa'e and Lor Sae), which can be
Translated as 'Timor where the sun rises' in Tetun. Finally, the official English
language name is Democratic Republic of East Timor ....
TONY WHEELER, EAST TIMOR 33 (2004).
2. Daniel Fitzpatrick, PropertyRights in East Timor's Reconstruction andDevelopment,
in EASTTIMOR DEVELOPMENT CHALLENGES FOR THE WORLD'S NEWEST NATION 178 (Hal Hill &
Jodo M. Saldanha eds., 2001).
3. See id. at 177.
4. Herbert D. Bowman, Letting the Big Fish Get Away: The United Nations Justice
Effort in East Timor, 18 EMORY INT'L L. REv. 371,373 (2004).
5. Id. at 375.
6. Central Intelligence Agency, Rank Order- GDP-per capita (PPP),in THE WORLD
FACTBOOK (2007). GDP is "the total value of goods and services produced in a country over a
period
of
time."
MSN
Encarta,
Gross
Domestic
Product,
http://encarta.msn.com/encyclopedia 761588125/GrossDomesticProduct.html (last visited
February 25, 2007). There are three ways to calculate GDP: "(1) by adding up the value of all
goods and services produced, (2) by adding up the expenditure on goods and services at the time
of sale, or (3) by adding up producers' incomes from the sale of goods or services." Id. GDP is
used by economists "to measure the standard of living in a country. They divide a country's
GDP by its population to arrive at GDP per head." Id.
IND. INT'L & COMP. L. REv.
[Vol. 17:2
extensive land tenure issues. 7 Because the country went from being a territory
of one state to the territory of another, it faces a number of conflicting land title
problems. 8 The violent military conflict that occurred directly prior to the
country's independence exacerbated the problem. 9 This period of violence,
brought about by the Indonesian military, resulted in the destruction of the
country's infrastructure, buildings, and titles to land, leaving a legal disaster
with regard to land tenure issues.' I The lack of certainty over land title and the
damage done by the Indonesian military has seriously halted the country's
ability to thrive economically." Thus, East Timor is in dire need of laws to
determine ownership of land and new, progressive forms of land reform. Yet
despite the exigency of the circumstances, careful thought and analysis must
occur before determining the appropriate regulations in 12order to ensure land
reform that is successful and withstands the test of time.
There are four categories of land claims that the people of East Timor are
bringing in hopes of reclaiming their land. 13 This Note assesses the prospects
for success of these various land claims and provides a comparative analysis to
land reform that occurred in South Africa post-apartheid and Zimbabwe postcolonialism. Based upon these findings, this Note analyzes the mechanisms by
which East Timor should work toward resolving its land tenure issues.
Part I discusses East Timor' s colonial history. It begins with a discussion
focusing on East Timor as a colony of Portugal. It then proceeds to examine
East Timor as a colony of Indonesia. Lastly, Part U discusses the Referendum
and the violence and destruction that occurred prior to the vote for
independence and after the vote was announced.
Part II examines the unique situation in East Timor. Not only is the
country facing problems associated with post-colonization, but it is also facing
problems associated with a post-conflict environment. This Part then presents
the four types of land claims that East Timor citizens are bringing in their
independent country. The basis of each land claim is explained, as well as the
problems of recognizing or ignoring such claims. True life accounts of the
7. See generally DANIEL FrrZPATRICK, LAND CLAIMS IN EASTTIMOR (2002). Land tenure
is the "way people 'hold' rights to land and real property." HENRI A.L. DEKKER, THE INVISIBLE
LINE: LAND REFORM, LAND TENURE SECURITY AND LAND REGISTRATION 43 (2003). Land tenure
denotes both a "legal term" and an "emotional term." Id. The "emotional significance of land
tenure [is] the way individuals perceive benefits, enjoyment, and obligations in respect to real
property." Id.
8. See FITZPATRICK, supra note 7, at 1.
9. See id. at 6. During this time, many of the country's land records were intentionally
destroyed. Id. at 7.
10. See generally id. at 6-7 (finding that there are conflicting land titles and many people
do not have proof that they own their land).
11. See Fitzpatrick, supra note 2, at 177-78.
12. See generally FITZPATRICK, supra note 7.
See also DANIEL FrrZPATRICK,
COMMONWEALTH OF Ausm., LAND ISSUES IN A NEWLY INDEPENDENT EAST TIMOR, Parliament of
Australia (2001), http://www.aph.gov.aullibrary/pubs/rp/2000-Ol/0lRP21.pdf.
13. See infra note 70 and accompanying text.
2007]
EAST TIMOR'S LAND TENURE PROBLEMS
difficult situations facing people in East Timor are then discussed in an effort to
humanize this situation. This will allow readers to better understand the
magnitude of problems facing the new East Timor government and its citizens.
This part concludes with a discussion of the impact that land issues are having
on East Timor to show why land tenure problems need to be resolved before the
country can prosper.
Part m provides general information about land reform, specifically the
benefits and detriments associated with such measures. The motives and
reasons a country might choose to reform land ownership are also discussed. In
addition, general criticisms against land reform are presented.
Part IV provides background information on South Africa, specifically
the country's history regarding property rights and the ways in which South
Africans were dispossessed of their land. The discussion then moves to events
that took place post-apartheid with relation to land reform. The successes of
the South African land reform program are presented, as well as the problems
and shortcomings of the country's efforts to reform the land issues and
distribute ownership interests more equally.
Part V explores Zimbabwe's colonial past and the impact it had on
ownership of land. It then discusses the land reform program implemented
following the country's independence. The country's attempted methods to
reform the land to allow for more equal distribution among individuals are
provided. Additionally, criticisms of Zimbabwe's efforts in reforming property
rights are explained.
Part VI discusses recent developments in East Timor in the area of land
tenure and its attempts to resolve land problems. This section presents recently
enacted land laws. Additionally, Part VII provides an explanation of new
departments and organizations dealing with land tenure.
Part VII provides suggestions of ways for East Timor to reform land use
and begin to resolve conflicting land titles. This Note suggests that land reform
is a good option for the country because it will provide land to landless
individuals, redistribute land in a more equal manner than has been done in the
past, and allow the country to improve economically by encouraging people to
use the land productively. In making this argument, the failures and successes
of land reform in South Africa and Zimbabwe will be evaluated and applied to
East Timor in an effort to make predictions of problems that East Timor is
likely to encounter in the future. This comparative analysis of land reform in
South Africa and Zimbabwe will provide the groundwork for suggested
methods to implement land reform in East Timor.
(Vol. 17:2
I. BACKGROUND INFORMATION AND HISTORY
East Timor, a small country slightly larger than Connecticut, is located in
southeastern Asia. 14 The country has mountainous terrain and natural resources
that include gold, petroleum, natural gas, manganese, and marble.' 5 Rice and
maize are the country's "chief food crops."' 6 Potential cash crops include
17
cashews, cloves, sugar, sandlewood, cocoa, and arabica coffee.
Additionally,
8
country.'
the
for
activities
important
are
fishing
cattle and
Little is known about the early years of the island of Timor, however, it is
believed the island was first visited by Chinese and Japanese traders as early as
the seventh century. 19 By 1513 Portuguese explorers arrived in Timor. 20 Prior
to the arrival of Portuguese explorers, Timor was "divided into a number of
,,2I2
small kingdoms. ' 1 Next, the Dutch arrived.22 By 1858, a border arrangement
commenced between the Portuguese and the Dutch.23 The arrangement
essentially divided the island of Timor into East Timor and West Timor.24 East
25
Timor became a Portuguese colony and West Timor became a Dutch colony.
West Timor received its independence in 1949, and thereafter became part of
the Indonesian Republic.26 Portuguese rule continued over East Timor until
1974.27
28
In 1974, Portugal's dictator, Marcello Caetano, was overthrown.
Subsequently, Portugal "quickly began divesting [itself] of its colonies., 29 The
East Timorese, realizing they were likely to be abandoned, formed groups to
determine how the small country should gain independence. 30 Indonesia, which
14. Central Intelligence Agency, CIA - The World Factbook -- East Timor,
https:l/www.cia.gov:443/cialpublicationsfactbookgeos/tt.html (last visited Apr. 5, 2007).
15. Id.
16. WHEELER, supra note 1, at 32.
17. Id.
18. Id.
19. Id. at 20.
20. Bowman, supra note 4, at 373.
21. WHEELER, supra note 1, at 20. There was frequent conflict among the small kingdoms
and "head hunting [was] a popular activity." Id.
22. JOSE RAMOS-HORTA, FUNu THE UNFINISHED SAGA OF EAST TIMOR 19 (1987); see also
Geoffrey C. Gunn, The Five-Hundred-Year Timorese Funu, in BITTER FLOWERS, SWEET
FLOWERS EAST TIMOR, INDONESIA, AND THE WORLD COMMUNITY 5 (Richard Tanter et. al. eds.,
2001).
24. Id. The agreement, dividing the island into East Timor and West Timor, was not
ratified until the year 1913. Id.
25. See id.
26. Id.
27. Id. There was a brief period of "Japanese occupation during World War H." Id.
28. DON GREENLEES & ROBERT GARRAN, DELIVERANCE THE INSIDE STORY OF EAST
TIMOR'S FIGHT FOR FREEDOM 4 (2002). Portugal was overthrown by Portuguese army officers in
an effort to rid the country and "its oversea territories" of a repressive government. Id.
30. Id. The people of East Timor are called East Timorese. See generally id. The three
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occupied West Timor, feared an independent East Timor would threaten its
security. 3 1 In response to this fear, Indonesia "funneled support
32 to individuals
and parties willing to [push for] integration with Indonesia."
Ultimately, a civil war ensued between parties in favor of independence
and parties in favor of integrating with Indonesia.3 3 Those supporting
independence for East Timor were ultimately victorious but, despite this
victory, the Indonesian troops still invaded East Timor.34 During the invasion,
thousands of East Timorese were killed by the Indonesian military.
In 1976, Indonesia declared East Timor to be its twenty-seventh
province.36 Indonesia tried to "gain popular support" by fixing the country's
infrastructure, schools, and hospitals, but at the same time continued to harass
and murder East Timorese who opposed them.37 Despite the improvements
made to the country, most East Timorese did not reap the benefits and their
living standards did not improve. 38 Instead, the estimated 150,000 non-East
Timorese who lived in East Timor were the ones who primarily benefited from
Indonesia's improvements and who held lucrative jobs in the country.39 "At no
stage did the vast majority of the East Timorese people ever feel that they lived
in [a place] other than an occupied territory." 4 By 1980, an estimated one-third
main political groups included the Timorese Democratic Union (UDT), the Timorese Social
Democratic Party (ASDT), and the Timorese Popular Democratic Association (APODETI). See
GREENLEES & GARRAN, supra note 28, at 4. The UDT and ASDT both "advocated eventual
independence"; however, the UDT proposed continuing an association with Portugal, whereas
the ASDT completely rejected colonialism. Id. The APODETI initially had few followers but
gained strength due to Indonesian intervention; it "supported integration with Indonesia." Id.
32. Id. at 374-75.
33. Id. at 375.
34. Id. Don Greenlees, a correspondent for Australianin Jakarta, and Robert Garran, a
long-time writer for major Australian newspapers in the areas of politics and economics, found
that the United States "supported the invasion in spite of some misgivings, viewing the issue as
one primarily for Indonesia, Portugal and Australia to resolve." GREENLEES & GARRAN, supra
note 28, at 13. See also RAMos-HORTA, supra note 22, at 1.
35. Bowman, supra note 4, at 375. Those who were not killed by the Indonesian military
were forced into the mountainous regions of the country if they resisted Indonesian rule. Id.
36. GREENLEES & GARRAN, supra note 28, at 15. Within ten days of invading East Timor,
Indonesia created an interim government in Dili. Id. Approximately five months later,
Indonesia hand-picked thirty-seven delegates to appoint to the People's Assembly;
subsequently, the Assembly voted to integrate with Indonesia. See id. at 11-15.
37. Bowman, supra note 4, at 375. "[T]he Indonesian security forces eroded [any support
gained] by raping, torturing, murdering, and starving large portions of the population .. " Id.
Also note that "[e]ven the roads that Indonesia built in East Timor, of which it was unduly
proud, served in large part to transport troops and equipment from district to district" and, thus,
were not for the benefit of the people of East Timor. DAMIEN KINGSBURY, SOuTH-EAST ASIA A
PoLmIcAL PROFILE 397 (2001).
38. KINGSBURY, supra note 37, at 397.
39. Id. The "East Timorese people were regarded as less than human by their new
Indonesian masters." Id.
40. Id. During the Indonesian occupation of East Timor "U]ournalists were usually
forbidden entry to the territory." JOHN STACKHOUSE, OUT OF POVERTY AND INTO SOMETHING
MORE COMFORTABLE 316 (2000). Journalist John Stackhouse, along with another journalist,
IND. INT'L & COMP. L. REV.
[Vol. 17:2
of the country, approximately 200,000 East Timorese, were killed by the
Indonesian military. 4'
In 1999, "Indonesian President B.J. Habibie surprised the world by
announcing his intention to allow the East Timorese to choose between some
type of autonomy within Indonesia and independence. 4 2 In response to
Habibie' s announcement, Indonesia, Portugal, and the United Nations came to
an agreement known as the Tripartite Agreement; it "allowed for a popular
referendum in which the East Timorese would be allowed to vote for special
autonomy within Indonesia or for a separation from Indonesia that would
ultimately result in independence. 4 3 The agreement stipulated that the United
Nations would "conduct and monitor the referendum," and Indonesia was given
the responsibility of providing security during the referendum period. 44 The
United Nations and Portugal agreed to allow Indonesia to provide security only
after Indonesia insisted that "no U.N. peacekeepers be sent to East Timor" and
that only a small amount of civilian police advisers be present. 45
Despite the Indonesian military's efforts to keep the East Timorese people
47
46
from voting, approximately 98.6% of the citizens voted on August 30, 1999.
The result of the Referendum, announced on September 4, 1999,48 produced an
outcome of 78.5% of East Timorese voting for their independence. 49 This
angered the Indonesian military; within hours after the vote was announced,
"they began taking retribution on the people of East Timor and the island
itself."5 °
As a result of the militia violence, thousands of East Timorese were
murdered and "over 450,000 people were estimated to have been internally
displaced within East Timor itself, and a further 300,000 fled or were forcibly
snuck into East Timor and posed as tourists. Id. He found that there were more "police... than
civilians" to ensure that East Timorese did not speak to foreigners about politics or their dislike
of Indonesia. Id. at 320. The police and government informants were everywhere: a "local
school teacher ... discovered one of her ten-year-old pupils was a government informer." Id. at
327.
41. Bowman, supra note 4, at 375. The Indonesian army acted "like an insensitive
occupying force" instead of "protectors of the peace." KINGSBURY, supra note 37, at 397.
42. Bowman, supra note 4, at 375-76.
43. Id. at 376.
44. Id.
45. GREENLEES & GARRAN, supra note 28, at 147. The United Nations and Portugal faced
the tough decision of either allowing the Referendum on Indonesia's terms or fighting
Indonesia's terms and risk Habibie withdrawing his offer to allow the people of East Timor to
vote on their future. Id. Ultimately, the United Nations and Portugal chose to agree to
Indonesia's insistence that it provide security. See id.
46. Bowman, supra note 4, at 377. "The Indonesian military and much of the civilian
leadership opposed President Habibie's initiative." Id. at 376. The military's objective was to
cancel the vote. Id. In the alternative, the military hoped to influence, through intimidation and
violence, East Timorese to vote against autonomy with Indonesia. Id.
47. GREENLEEs & GARRAN, supra note 28, at 191.
48. Id. at 202.
50. Id.
2007]
transported across the border to West Timor."'', The majority of government
experts and administration fled the country "[b]ecause they were either nonEast Timorese or were pro-autonomy supporters. 5 2 This group of people
included all of the country's judges and most of the country's attorneys.53
East Timor was officially declared an independent nation on May 20,
2002. 54 Nevertheless, this independence has not come without problems. 5 The
atrocities that occurred after the Referendum have left East Timor in a dire
state. 56 Specifically, the country has had to deal with problems with land
tenure.57 Many of the country's land records were destroyed during the period
of violence after the Referendum. 58 The Indonesian military purposely "entered
the land titles building, took the records outside, set fire to them, and then
torched the building itself., 59 It is estimated that eighty percent of land titles in
East Timor were destroyed. 6° In addition, homes were intentionally burned and
destroyed by the Indonesian military. 6
The acts of the Indonesian military left the country with housing
shortages and little evidence to ascertain ownership of parcels of land.62 This
situation worsened when large numbers of people returned to East Timor under
the force of the West Timor authorities. 63 These people returned to East Timor
to find their land occupied by other people or destroyed. 64 The lack of
51. FITZPATRICK, supra note 7, at 5.
52. Id. at 6.
53. Id.
54. Central Intelligence Agency, supra note 14.
55. See generally FITZPATRICK, supra note 7 (explaining the problems with the state of
land tenure).
56. See id. at 6.
57. Id.
58. Id. at 7. In a positive occurrence, "a land professional who reportedly could not
condone the destruction of records," took the Dili land titles book for safekeeping. Id. The
book only contained evidence of registration and not any authorization or history. Id. The
problem is that Indonesia has refused to return the book. Id.
59. Id. at 6. Kosovo, Iraq, Afghanistan, and Somalia are other cases in which "land
ownership documents were taken, sometimes for 'ransom', sometimes for safety and sometimes
to be destroyed." DANIEL LEWIS, UNHABITAT, CHALLENGES TO SUSTAINABLE PEACE: LAND
DISPUTES
FOLLOWING
CONFLICT
4,
http://www.fig.net/commission7/geneva 2004/papers/lapca 01 lewis.pdf (2004).
60. FrrZPATRICK, supra note 7, at 7. Because of the extreme violence that occurred after
the Referendum, the urgency to flee, and the forced departures, most people did not take their
land titles when they left their homes. Id.
61. Id. at 8. "In Dili ... a milk truck was used to pump [gas] into houses before they were
lit and destroyed." Id. In addition to homes and records, the Indonesian military also targeted
infrastructure. Id. Reports from the United Nations Transitional Authority in East Timor
(UNTAET) estimate that over ninety-five percent of the infrastructure in Dili was destroyed and
a total of 70 per cent of the country's entire infrastructure was "destroyed or rendered
inoperable." Id.
62. See id. at 6-17.
63. Id. at 9.
64. Id. This is not necessarily something new for rural areas of East Timor, but it has
created a serious problem for large cities, like the capital city of Dili. Id.
[Vol. 17:2
adequate housing has caused disputes and violence among East Timorese.65
Additionally, there has been a fury of land claims since the country gained
independence. 66
II. THE CONSEQUENCES OF EAST TIMOR'S TuMuLTuous PAST
A. A Unique Situation
East Timor presents a unique situation because it is not only a postconflict environment, but it is also a post-colonial environment.6 7 East Timor is
facing problems associated with post-conflict environments, such as the return
of refugees, inadequate shelter, restoration of land records, and restoration of
institutions of governance.68 East Timor is also facing problems associated
with a post-colonial environment, including: implementing a new government,
building new infrastructure, and employing a method with which to resolve
land conflicts. 69 Thus, East Timor is a country that, although now independent,
still has a long and difficult road ahead. It faces not only one bundle of
problems associated with decolonization, but a second bundle of severe issues
associated with past conflict. 70 Jose Ramos-Horta, Foreign Minister of East
reTimor, summed up the situation in East Timor when he described the task of
71
building the new nation: "we are starting from absolutely ground zero.",
B. The Four Categoriesof Land Claims
The events that occurred after the Referendum in East Timor sparked an
abundance of land claims.72 The land claims brought by people were not based
only on land lost during the period after the Referendum, but also from various
times throughout East Timor's history.7 3 There exist "four categories of
potential claimants for land in East Timor": traditional occupiers of land, those
65. Id. at 10.
66. See generally id. (explaining the problems with the current state of the land tenure
system).
67. See id. at 1.
68. Daniel Fitzpatrick, Land Policyin Post-Conflict Circumstances: Some Lessonsfrom
(2001),
ASSISTANCE
HUMANITARIAN
OF
J.
Timor,
East
http://www.reliefweb.int/rw/rwb.nsf/AlldocsbyUNID/ca96eed98e8813f2c 1256b37003al7f2.
69. Id. East Timor not only has had to deal with a "wave of dispossession," but also
problems associated with Portuguese colonization and Indonesian invasion and occupation.
Fitzpatrick, supra note 2, at 178.
70. See generally Fitzpatrick, supra note 2.
71. GREENLEES & GARRAN, supra note 28, at 306. Horta remarked that not only was the
country lacking basic needs, such as "doctors, dentists, accountants, lawyers, and police, but
also tables chairs, pots, and pans." Id.
72. See generally FITZPATRICK, supra note 7 (describing the various types of land claims).
73. See generally id. Fitzpatrick describes the situation in East Timor as "most
challenging." Id. at 1.
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who derived land under Portuguese title, those who derived land under
Indonesian title, and those in current possession of the land.74
1. TraditionalOccupiersof Land in East Timor
The first category of claimants includes traditional occupiers who have
held "customary rights to land., 75 Most land in rural areas of East Timor is
"not registered in any formal system of land administration and remains
[utilized] in accordance with traditional processes and institutions. 76
Generally, land held by traditional occupiers is held in "community-based"
groups in customary tenure systems.7 7
Communal land systems may create and perpetuate East Timor' s land and
financial problems, which may not make it the best type of land claim for East
Timor to recognize.78 First, no single individual owns the land and there is
often little incentive to invest in the land.79 Because community-based groups
may not invest in the land, the result is land in the hands of users who are not
productively using the land to its fullest economic potential.80 Second, because
the land is held in community control no one from inside the community can
sell the land to anyone outside of the community. 81 This restriction on
alienation creates a situation in which land cannot be used as security for credit,
and thus, ultimately decreasing the chances and opportunities for developing
74. Id. at 15. Daniel Fitzpatrick has written extensively on this subject and his work is the
basis of this Note's section regarding the four claims to title. In 2000, Mr. Fitzpatrick, Senior
Lecturer, Faculty of Law at Australian National University, served as a legal consultant to the
United Nations Transitional Administration in East Timor. The Australian National University,
ANU College of Law - Our Staff, http://law.anu.edu.au/scripts/staffdetails.asp?StafflD=26 (last
visited Mar. 19, 2007) (hereinafter Australian National University). In 2002, Mr. Fitzpatrick
published Land Claims in East Timor, a work described by Sir Gerard Brennan, former Chief
Justice of the High Court of Australia, as "profound academic scholarship." Id. See generally
FITZPATRICK, supra note 7.
75. FrrZPATRICK, supra note 7, at 168; see generallyPEDRO DE SOUSA XAVIER, DIREcIAo
NACIONAL DE TERRAS E PROPRIEDADES (DNTP), TIMOR-LESTE LAND MANAGEMENT: A LONG
WAY
TO
Go,
BUT
WE
HAVE
STARTED
(2005),
www.fig.net/commission7/bangkok_2005/papers/6 3 sousappt.pdf.
76. FITZPATRICK, supra note 7, at 167. See generally HERNANDO DE SOTO, THE MYSTERY
OF CAPITAL: WHY CAPrrAUSM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE (1941)
(discussing capitalism and its relation to the legal structure of property).
77. Id. at 168.
78. Id. at 169. The arguments presented in this section have "had considerable influence
on land policy in the developing world. They led, for example, to the outright rejection of
customary tenure systems in Kenya, Malawi, Uganda, and Guinea." Id. at 170. Recently, the
World Bank has tried to counteract these arguments by providing arguments supporting
customary tenure systems. Id.
79. CRAIG RICHARDSON, THE COLLAPSE OF ZIMBABWE INTHE WAKE OF THE 2000-2003
LAND REFORMS 51 (2004). This is a classical example of the "tragedy of the commons." Id. at
54. See also FrrzPATRICK, supra note 7, at 170.
81. Id. at 169.
IND. INT'L & COMP.
L. REV.
[Vol. 17:2
the land.82 Third, "traditional forms of tenure [can] cause unsustainable overconsumption of natural resources on land., 83 "Communal farming methods are
a recipe for disaster" because group members have no incentive to limit their
intake, which results in destruction of the land.84 These arguments suggest that
land held in customary tenure systems is both harmful to the land and
unproductive, which indicates that recognizing land claims from traditional
occupiers might not be the best choice for East Timor.85
On the other hand, it is important to note that the World Bank has
recently changed its views on tenure systems.86 It has found that communal
land systems can still provide incentives for owners to invest in the land and not
deplete land of its natural resources.87 Furthermore, the World Bank suggests
land that cannot be used to access credit can still be used productively.88 This
competing view on traditional land systems "has led a large number of
to seek to build on traditional tenure systems rather than
developing countries
89
replace them.,
2. Land Owners during PortugueseRule
The second category of claimants includes those who acquired title to
land during Portuguese rule over East Timor. 9° An estimated 2,483 titles were
issued in East Timor during Portugal rule. 9' Claims made by these people
include titles to very valuable land. 92 To recognize these claims would93result in
"a small colonial elite" holding large amounts of land in East Timor.
Nevertheless, there are "strong moral and legal arguments" as to why the
Portuguese land titles should be recognized. 94 The law of belligerent
occupation is an idea developed during the 1899 and 1907 Hague Conventions
on Land War.95 Basically this principle finds:
82. Id. at 170.
83. Id.
84. RICHARDSON, supra note 79, at 51. See also Frr7PATRICK, supra note 7, at 170.
85. See e.g., FITZPATRICK, supra note 7, at 167-70. See generally RICHARDSON, supra
note 79, at 58-63 (comparing communal lands and land individually owned in Zimbabwe).
87. See id. at 170-7 1. The World Bank notes several studies that have found that due to
the "strength of social ties and community obligations" individuals are prevented from over
consuming and "taking more than their share." Id. at 172.
88. Id. at 171. The World Bank cites "certain successful agricultural industries in Africa
[that] have been created without access to formal credit or registered titles." See id. at 170.
89. Id. at 172.
90. See id. at 141. These are people who acquired title pre-1975. Id. The "Portuguese
issued land titles, known as 'Alvara."' XAVIER, supra note 75.
92. Id. at 141. Land claimed includes important urban property and plantation land. Id.
93. Id.
94. Id.
95. Convention Respecting the Laws and Customs of War on Law, with annexed
Regulations, 36 Stat. 2277, TS No. 539, 205 Parry's TS 277, Oct. 18, 1907 [hereinafter
2007]
occupation leads to administrative control but not sovereignty.
The general rule is that the occupier is required to respect
"unless absolutely prevented" the laws in force in the territory
at the time of the invasion. This has been interpreted to mean
that the occupier may not extend its own law and legal system
to the occupied territory, and may not establish a new court
system. [Furthermore,] the occupier must respect private
property and refrain from pillage or confiscation.9 6
An important aspect of belligerent occupation is that the land is occupied and
not annexed. 97 Little doubt exists that Indonesia occupied East Timor and thus,
was a belligerent occupier. 98 Ultimately, this means "Portuguese law remained
the underlying law of East Timor during the period of Indonesia's
occupation. '"" Taking this viewpoint means that land titles issued under
Portuguese rule should have been recognized during the period Indonesia
occupied East Timor.'0° It further leads to the presumption that land titles
acquired in East Timor during Portuguese rule should still be recognized
today.'01
Customs of War]. See also FITZPATRICK, supra note 4, at 46. Fitzpatrick finds that "a number
of scholars also claim that both the Hague Conventions and the Fourth Geneva Convention have
entered international customary law. If this is so, under general principles of international law,
Indonesia is bound by the Hague Regulations notwithstanding that it is not a party to the Hague
Conventions." Id.
96. FTZATRICK, supra note 7, at 46-47. See generallyD.A. GRABER, THE DEVELOPMENT
OF THE LAW OF BELLIGERENT OCCUPATION 1863-1914 (1949). There are exceptions to principles
stated in the text of this Note:
First, an occupier may change the law where it is 'absolutely prevented' from
doing otherwise. Second, an occupier may take all steps necessary to maintain
public order and civil life. Third, an occupier may requisition such property as is
necessary for military purposes. Fourth, an occupier may take possession of all
movable property belonging to the enemy state that 'may be used for military
operations' ....
FrTZPATRICK, supra note 7, at 47 (alteration in original) (citations omitted). These are the
"'military necessity principles."' Id.
97. See FITZPATRICK, supra note 7, at 47. To determine if an occupier is occupying a
country or has annexed a country, one must determine if the "annexation involved armed
conflict between two sovereign powers" and if the "annexation was unlawful under the rules of
the international law." Id. at 49. If both of these factors are answered affirmatively, then the
law of belligerent occupation applies. Id.
98. Id. at 51. East Timorese never welcomed Indonesian troops throughout the twentyfour year occupation. See id. at 52-54. Furthermore, there is nothing to indicate that East Timor
wanted Indonesia to colonize it. Id. at 52. This idea is bolstered by the fact that Indonesia
entered East Timor with force. See id. at 52-53.
99. Id. at 141. It is important to note that Portugal's status in East Timor was that of a
sovereign power, whereas "Indonesia never appears to have gained sovereignty over East
Timor." Id. at 143.
100. See id. at 166.
101. See id at 145. Fitzpatrick adds, "there is nothing to prevent [the government] from
non-discriminatory adjustment of these titles without payment of compensation to their East
Timorese holders." Id.
[Vol. 17:2
Nevertheless, there are many problems associated with recognizing titles
acquired during Portuguese rule. First, it would dispossess a large amount of
people who purchased their land under Indonesian rule and who view
themselves as bona fide landholders. 0 2 Second, it would dispossess many
traditional occupiers who "re-took possession of Portuguese titled land after
1975, or after the Indonesian withdrawal in September 1999.,,103 Third, it
would likely cause political conflicts between the liberals and conservatives
because it would enable many conservatives to repossess land they owned prior
to 1975.1°4 Finally, it would result in placing a large amount of valuable land in
the hands of Portuguese, which would result in a "colonial system of land
ownership."' 0 5 Despite arguments against recognizing title acquired under
Portuguese rule, however, the idea of belligerent 1 occupation
remains,
6
suggesting that Portuguese titles should be recognized. 0
3. Land Owners During Indonesian Rule
The third category of claimants includes those who acquired title to land
during Indonesian rule over East Timor. 107 An estimated 34,965 titles were
issued by Indonesia in East Timor between the years of 1975 and 1996.08 East
Timorese acquired some of these titles, but wealthy Indonesian families and
Indonesian corporations acquired a larger amount. 19 In addition to the private
0
property titles, Indonesia also "took over former Portuguese state property.""l
On this land, Indonesia built new government buildings and housing for
Indonesian civil servants.' 1 Indonesia is now claiming "recognition of, or
' 12
compensation for, all of these types of Indonesian titles." "
If the law of belligerent occupation is applicable, then it "may cast doubt
on the validity of Indonesia's claim for recognition of private Indonesian titles,
and compensation for state or public property."'" 3 Applying the law of
belligerent occupation would harm those East Timorese who acquired land
102. See id. at 141-66. This group includes East Timorese who obtained title to land
during Indonesian occupation or have "been in long-term occupation of Portuguese title land
since 1975." Id. at 142.
103. Id. at 42.
104. Id.
105. Id.
106. See generally id. at 46-49 (discussing the idea of belligerent occupation).
107. See generally id. at 44-140 (chapters discussing those people that acquired title to land
from Indonesia).
108. Id. at 44.
109. Id.
110. Id.
111. Id.
112. Id. at45.
113. Id. Fitzpatrick notes there may be another way to solve East Timor's land claims
problem other than by use of the law of belligerent occupation. See id. He states that "[in]
many post-communist countries . . . compensation or property restitution laws have been
enacted for the benefit of pre communist owners of private property." Id.
20071
under Indonesian rule.'" 4 Furthermore, to find the titles acquired under
Indonesian rule invalid would "[appear] to conflict with certain emerging
international norms relating to housing security and protection against
unreasonable evictions."' 5 Therefore, a dilemma exists between invalidating
titles acquired during Indonesian rule, which would result in the eviction of
East Timorese, and recognizing these titles,6which would overwhelmingly give
land rights in East Timor to Indonesians." 1
4. CurrentPossessorsof Land
The fourth category of claimants includes those that are currently
occupying land."i7 Due to the massive population displacements in 1975, when
Indonesia entered East Timor, and after the Referendum in 1999, "the extent of
informal land occupation by migrant or displaced groups in East Timor is
particularly high."'" 8 By April 2000, most homes in Dili, the capital city of
East Timor, 119 were occupied by people other than their former owners and
were severely overcrowded. 2 0 In addition to claims by original owners of land,
individuals that entered into land contracts with people that were not the
12 1
rightful owners of the land are also bringing claims as bona fide purchasers.
A variety of concerns arise with this group of claimants. 12 East Timor
could protect these people by passing legislation. 123 There are three ways to
accomplish this. 124 First, "legislation could provide for protection against
eviction of any occupiers who lack alternative land for housing and
cultivation."' 125 Second, legislation could allow a formal right to land if a
person has occupied the land for at least twelve years. 126 Finally, legislation
could allow those currently occupying land the opportunity to gain formal legal
rights to the land if they obtained it in good faith and were not on "notice of
prior claims."' 127 These forms of legislation would prevent massive evictions
114.
115.
116.
117.
118.
See id. at 63.
Id.
Seeid.
Id. at 205.
Id.
119. See WHEELER, supra note 1, at 54.
121. See id.
122. See id. at 204-05.
123. Id. at 205.
124. Id.
125. Id.
126. Id. This is an adverse possession idea; adverse possession is "a method of acquiring
title to real property by possession for a statutory period under certain conditions, esp. a
nonpermissive use of the land with a claim of right when that use is continuous, exclusive,
hostile, open, and notorious." BLACK'S LAW DICTIONARY 22 (Bryan A. Garner ed., 2nd pocket
ed. 2001).
127. FrrZPATRICK, supra note 7, at 205. Allowing this type of legislation would be extreme
because it would hurt land title holders, be it from the Indonesian era or when Portugal ruled,
[Vol. 17:2
but would also "diminish the prospects of claims by Portuguese or Indonesian128
era titleholders and potentially reward opportunistic occupations."'
C. The Impact of the Land Crisison People
East Timor' s complicated land tenure problems have greatly affected East
Timorese and individuals that own land in the country.1 29 For example, land
tenure uncertainty has posed an obstacle for an Australian businessman who
purchased hotel property in Dili in 1971 under Portuguese title. 30 In 1974, the
land owner and his family fled East Timor because the Indonesian military
threatened to kill any foreigners in Dili.13 1 After the land owner and his family
left, the Indonesians took control of the hotel and ran it until 1998.132 The land
owner then returned to East Timor and was able to convince the Indonesian
authorities that he was the owner of the hotel; 33 however, the Referendum
occurred and violence quickly ensued.134 The land owner and his family again
fled East Timor. 135 The land owner has again returned, but the new East Timor
36
government has refused to acknowledge his ownership of the property. 1
Similarly, another family leased property from the Portuguese
government prior to 1975 and has had trouble establishing property rights with
the new East Timor government. 137 The family remained on the property after
Indonesia occupied the country but did not pay rent. 38 Now that East Timor is
independent,
the government is claiming the land back and is trying to evict the
39
family.
1
Many Portuguese families who owned land in which coffee was
harvested fled East Timor when Indonesia invaded the country. 4° These
families left their properties with caretakers.'14 After a while, many caretakers
sold the land without the permission of the owners. 142 Now these Portuguese
families are returning to find their land gone and are making attempts to reclaim
and reward squatters. See id.
128. Id.
129. See FITZPATRICK, supra note 7, at 1.
130. Rod McGuirk, Asia: FavaroLand Case Takes New Twist, AUSTL. GEN. NEws, Sept. 3,
2001.
131. Id.
132. Id.
133. Id.
134. Id.
135. Id.
136. Id.
137. Damien Carrick, PropertyRights: EastTimor; Adverse Possession(radio broadcast
Apr. 13, 2004), availableat http://www.abc.net.au/m/talks/8.30/lawrpt/stories/s 1083899.htm.
138. Id.
139. Id.
140. Commonwealth
of Austi., Land Titling in East Timor (2002),
http://www.ausaid.gov.au/closeup/etimor/titling.cfm.
141. Id.
142. Id.
2007]
EAST TIMOR's LAND TENURE PROBLEMS
their property. 143
These cases representjust a few of the thousands of land claims that have
arisen.144 East Timor' s tumultuous past has created
a land tenure problem that
145
is complex and may take many years to resolve.
D. Reasons Why Land Tenure Problemsin East Timor Need to be Solved
Land tenure problems are vitally connected to many aspects of a
country's well-being, specifically its economic and political stability. 46 In
order for the young nation of East Timor to prosper, the country must ascertain
ways to cure the current state of its land tenure system.147
East Timor has always struggled financially. As a Portuguese colony, the
country was highly impoverished; as a colony of Indonesia, it was Indonesia's
second poorest colony. 48 There is a general consensus among economists that
property "is vital to sustainable economic development."' 149 This is because
people are less likely to want to invest and build infrastructure or plant crops in
regions that lack formal property rights.150 There is a "dramatic effect on work
incentives when individuals feel secure that the product of their work efforts
will not be stolen from them."''51 Furthermore, foreign companies do not want
to invest in a country unless they can be guaranteed private land ownership
rights. 52
'
East Timor has natural resources that could be of great economic benefit
to the country, but that can only be fully utilized through the establishment of
an enforceable land tenure system. 53 Thus, the country's economic vitality
rests upon the resolution of its land claim problems. 154
The success of a country depends highly on its political stability. 155 East
143. Id.
144. See Carrick, supra note 137. See also RICHARDSON, supra note 79, at 11 (finding that
"countries that first recognized the importance of property rights were the ones that saw the
fastest economic growth.").
145. See generally FrrZPATRICK, supra note 7 (describing the land claims problems in East
Timor).
146. See DEKKER, supra note 7, at 82-83.
147. See generally FrrZPATRICK, supra note 7 (suggesting solutions for East Timor's land
claims problems).
148. KINGSBURY, supra note 37, at 409.
149. Fitzpatrick, supra note 2, at 177.
150. Id.
151. RICHARDSON, supra note 79, at 15.
152. Fitzpatrick, supra note 2, at 177.
153. Id. East Timor has oil fields, "a strong coffee production industry," and a beautiful,
natural landscape that could provide the country with profitable tourism opportunities.
KINGSBURY, supra note 37, at 410.
154. See generally Fitzpatrick, supra note 1 (discussing the dire state of the country's
economy).
155. See generally id. at 193-206 (discussing the need for a "'political order support of
broad economic goals' such as prosperity, social justice and national unity"). Id. at 193.
[Vol. 17:2
Timor's current land problems have created political instability in that "[n]oone wants to create a legal solution to the problem because everyone worries
that that legal solution will deny them their own rights." 56 Thus, politics have
played a huge role in East Timor's lack of beneficial land reform, as the
country's political officials have resorted to ad hoc solutions that benefit the
politically powerful. 157 This political corruption exemplifies the way in which
land tenure issues can be interconnected with problems in the internal structure
of a country and further indicates the need to cure land tenure problems.
III. LAND TENURE REFORM
Land reform is a "deliberate act to change the existing land tenure."' 1 8 It
is commonly thought to only apply to agricultural land,' 59 however, land reform
applies to "changing the tenure situation of all real property."''60 Land reform is
generally motivated by the need to "modernize agriculture or to redress
inequalities in the distribution of land assets," or for a combination of these two
reasons. 16 1 Land is redistributed, which often results in the government taking
land from those who possess large amounts and giving it to poor, landless
individuals. 162 This method of redistribution can significantly help a country's
economy because it gives peasants the ability to make a living off the land. 163 It
is important
to note, however, that land reform can also result in subsistence
164
farming.
It is imperative that land reform programs are developed specifically for
the country in need; there is no standard formula or method by which to reform
land. 65 In general, land reform programs should have a system that allows
156. Carrick, supra note 137.
157. Id.
158. DEKKER, supra note 7, at 77. Land reform is non-evolutionary. Id. Also, there is a
difference between land reform and agrarian reform. Id. Agrarian reform is a "complex of
changes in rural structure that occur as a matter of passing of time, as a governmental supported
activity to assist farmers in achieving more efficient agricultural land use, but also always as part
of land redistribution processes either on purpose or as a side-effect." Id. at 78. Agrarian
reform is mostly used to fight rural poverty. Id.
159. Id. "Land reform is the deliberate act to change the existing land tenure in a rural area
making it a non-evolutionary way to change land tenure." Id. at 77.
160. Peter Jacobs et al., Land Redistribution, PROGRAMME FOR LAND AND AGRARIAN
STUDIES, Sept. 2003, at 1.
161. DEKKER, supra note 7, at 77. Evidence from some former communist countries
indicates that large farms are not nearly as agriculturally productive as small farms. Id. at 79.
162. Id. at 78. Land reform usually occurs for political reasons and if carried out
throughout the country generally needs the support of foreign donors for its funding. Id.
163. Jacobs et al., supra note 160, at 1.
164. Maura Andrew et al., Land Use and Livelihoods, PROGRAMME FOR LAND AND
AGRARIAN STUDIES, Aug. 2003, at 1. Using land in this way is "generally viewed as wasteful,
destructive and economically unproductive in comparison to commercial production systems."
Id.
165. DEKKER, supra note 7, at 80. For this reason land reform programs are not completely
comparable, nor can a successful land reform program in one country be expected to yield the
2007]
loans that use "land as collateral, and provide education to new farmers."'' 66 In
addition, governments need to provide "physical infrastructure," such as roads
and utilities.' 6 7 It is also important for a country to use a "continuum of
farmers' approach."' 168 This approach recognizes "and supports a broad range
of large and small-scale, full-time
and part-time, as well as commercial, peasant
169
and subsistence farmers."'
170
Land reform can provide stability and enable a country to prosper.
First, it provides these benefits by decreasing political conflict, thereby
providing a country with political stability. 17 1 Without political stability land is
often "misallocated," resulting in thousands of peasants without land and a
viable source with which to support themselves. 172 Frequently, peasants'
dissatisfaction with this situation results in the formation of groups that rebel
173
against the country's government and its failure to provide them with land.
In an effort to maintain peace and political stability, many countries turn to land
reform. 174 Another political reason to reform land is to "show the world" that a
country is working toward economic and social development. 175 Second, land
reform may provide a country with economic growth.176 "Improved access to
land [allows] the rural poor to make more productive use of family labor,"
which may stimulate a country's economy.177 Studies178indicate the more
security there is in land tenure, the more farmers harvest.
Two things must occur to successfully reduce poverty through the use of
land reform. 179 First, "the poor must have access to the land; [second], the poor
must be assisted with sufficient resources and an enabling institutional
framework for them to base their livelihood on the land."' 180 A land reform
same results in another country. Id. at 105.
166. Id. at 81; See, e.g., LAND REFORM INZIMBABWE: CONSTRAIMS AND PROSPECTS 129
(T.A.S. Bowyer-Bower & Colin Stoneman eds., 2000) [hereinafter LAND REFORM IN
ZIMBABWE].
167. DEKKER, supra note 7, at 81. Roads are needed to allow new land owners "access to
their fields and to transport cattle, harvests and crops." Id.
168. Andrew et al., supra note 164, at 1.
169. Id. The alternative approach is dualistic in nature and assumes farming is either
commercial or subsistent in nature. Id.
170. DEKKER, supra note 7, at 82-83. Liberation theology is another motive suggested by
Dekker, but it will not be discussed in this Note. For further discussion of this theory, see
generally id. at 83-84.
171. See BEN CHIGARA, LAND REFORM POLICY: THE CHALLENGE OF HUMAN RIGHTS LAW 8
(2004). See also DEKKER, supra note 7, at 82.
172. See DEKKER, supra note 7, at 82.
173. Id. "Land reform in the 1960s was largely motivated by the fear of insurgencies and
political unrest." Id.
174. See id. at 103.
175. See id.
176. Id. at 83.
177. Id.
178. Id.
179. TuLANI SrrHoLE & GOODHOPE RUSWA, ZIMBABWE'S LAND REFORM PROGRAMME: AN
AuDrr OF THE PUBLIC PERCEPTION 2 (2003).
180. Id.
IND. INT'L & COMP.
L. REv.
[Vol. 17:2
lacking either
of these two components is likely to be unsuccessful in reducing
8
poverty.' 1
Land reform cannot be expected to completely absolve a country of its
183
problems. is2 Furthermore, land reform programs often come with criticism.
Thinking of land reform in strictly the agriculture sense, it is argued that "[t]he
youth of most of the rural regions feel that anything is better than working on a
small farm with all of its uncertainties like disappointing harvests, pests, credit
debts, droughts [sic] etc."' 184 These people find that the increasing importance
of technology is decreasing the importance of land. 85 Also, many argue that
private property is a "near-sacred [right]" that should not be taken away to
redistribute to landless individuals. 8 6 Thus, it is important for a country to
carefully ascertain the benefits that might be gained by8land
reform, but also
7
keep in mind the detrimental effects associated with it.1
IV. LAND REFORM IN SOUTH AFRICA
A. History of Dispossession
South Africa's history "is marked by a series of incidents in which
' 8
European settlers dispossessed indigenous South Africans of their land."'
The course of dispossession occurred gradually; it first started in the mid-1600s
when Dutch settlers invaded the Cape, and continued up until the twentieth
89
century when Europeans began "[segregating] land ownership by race."'
Initially, Africans "welcomed the settlers," but little did they realize that these
settlers would soon oust them from their native lands.' 90 By 1910, the British
population had exponentially increased due to "the discovery of diamonds and
gold in the late 1800s. ' ' 191 A government composed of white Europeans passed
policies that restricted, and in some cases denied, Africans of their property
rights. 192 Ultimately, these policies drove the Africans out of their land.' 93
In 1913, the Natives Land Act was enacted and proved to play a major
181. Id.
182. DEKKER, supra note 7, at 102.
183. See id. at 107.
184. Id.
185. Id.
186. Id. This is a natural law idea. Id.
187. See generally id. at 103-07 (evaluating land reform).
188. Lauren G. Robinson, Rationalesfor Rural Land Redistribution in South Africa, 23
BROOK. J. INT'L L. 465, 468 (1997).
189.
190.
191.
192.
193.
Id.
Id. at 470-71. Several wars were fought between European settlers and Africans. Id.
Id. at471.
Id. at 472.
Id.
20071
94
role in moving the region towards apartheid and segregation of the races.'
This Act "set aside seven percent of the surface area of South Africa as reserves
or scheduled areas as territories where only Blacks, who comprised more than
seventy-five percent of the population, could purchase property.' 95 The 1913
Act created a devastating situation for Africans, which was only slightly
improved by the 1936 Native Land and Trust Act. 196 The 1936 Act "increased
the land available for Black ownership to 13.6% of the country's surface
area.' 97 However, this increase in the amount of available land to Africans
was accompanied by a provision denying
Africans on the land reserves the right
198
to obtain "direct ownership" of land.
By 1948, South Africa was under apartheid and laws were "entrenched
[with] White privilege."' 199 Racial segregation was not only socially accepted,
but it was legally mandated. 200 Apartheid was justified on the "basis of an
ideology of White supremacy and the alleged racial inferiority of Africans. ' 2 '
During the period between 1960 and 1983, white farmers and the
government forcibly removed Africans from non-Native areas.20 2 The reserves
were transformed into the homelands and "Africans were banished" to this area,
which was not large enough to sustain such a large population.2 3 Essentially,
Africans were treated as "foreigners in their own country. 20 4 It is estimated
that during this time approximately 3.5 million Africans were removed from
their home and deported to areas called the homelands.20 5
194. Id.
195. Id. In addition, land transactions consisting of land outside of the reserves could not
take place between Blacks and persons that were not Black. Id. at 472-73. This resulted in
diminished opportunities for Africans to earn high incomes because they could not engage in
sharecropping arrangements with White farmers. Id. at 473.
196. See id. at 475.
197. Id.
198. Id. "The [1936 Act] substituted individual land ownership with trust tenure by
establishing the South African Development Trust, a government body which purchased land in
the released areas for 'Black settlement."' Id. Additionally, Parliament passed laws that
"created racially segregated sections in the urban areas" and restricted African's abilities to
obtain land in urban areas. N. These laws were called the Urban Areas Consolidation Act of
1945. Id.
199. Id. at 476. See also CHIGARA, supra note 171, at 18-20.
200. Robinson, supra note 188, at 476. This situation occurred shortly after the National
Party gained control of South Africa's government. Id. The National Party was able to
maintain support by subsidizing "White farmers in exchange for their political loyalty." Id.
201. Id. During this time, a complicated system of racial classifications was developed. Id.
Whites composed one racial group, while Blacks were broken into various different categories
based on tribal affiliations. Id. 476-77.
202. Id.
203. Id.
204. Id. at 478.
205. Id. at 479. The land given to the Africans in the homelands in exchange for their
homes was not an equivalent trade. Id. In the homelands there was a land shortage, which made
it hard for Africans to obtain farm land. Id. at 480. This created high poverty rates in the
homelands. Id. at 481.
[Vol. 17:2
In 1990, almost fifty years later, the apartheid government began to repeal
statutes governing segregation. 206 By 1991, the Land Acts from 1913 and 1936
were repealed. 20 7 Shortly thereafter, a "multi-racial transitional government"
formed to rid South Africa of apartheid.2 °8 In 1994, Nelson Mandela was
elected president and by 1996 the country had adopted a new constitution.2°
B. The Redistribution of Land
"The post-apartheid government... inherited the land problem, as well
as" the dissatisfaction of Africans in South Africa. 210 The exclusion of
apartheid laws in the late 1980s created "a massive movement of people from
[neighboring] countries into South Africa"; this only added to the already
immense land problems for the country. 21' However, South Africa acted fast to
create solutions to the land problems facing the country. 212 In an effort to
prevent an "economic meltdown," the government continued to encourage
foreign investment while at the same time continuing efforts to provide land to
the "landless" people of the country.2 13 A land reform program was developed
in 1994 with the goal to redistribute thirty percent of "agricultural land between
1994 and 1999 through restitution, redistribution, and tenure reform
[programs]. 214
The land tenure program did not prove to be as successful as the
government had hoped; a mere forty-one out of 63,000 claims were settled.21 5
Over half of South Africans are still "landless and need land., 2 16 Additionally,
"[a]chieving greater equality in land ownership and
improving the livelihoods
217
of rural people" proved to be a huge challenge.1
There are many reasons advanced for the land reform program's
failure.218 One criticism is that the government has remained committed "to a
neoliberal macroeconomic [program]," which has slowed efforts to redistribute
land because the program relies on a "'willing buyer, willing seller'
206.
207.
208.
209.
210.
THE LAND
Id. at 482.
Id.
Id. See also Jacobs et al., supra note 160, at 1.
Robinson, supra note 188, at 483.
Mfaniseni Fana Sihiongonyane, Land Occupations in South Africa, in RECLAIMING
THE RESURGENCE OF RURAL MOVEMENTS IN AFRICA, ASIA AND LATIN AMERICA 142,
142 (Sam Moyo & Paris Yeros eds., 2005).
211. See id. at 146.
212. See id. at 150.
213. See id.
214. Id.
215. Id. A huge part of this problem is attributed "to the fact that after eight years of postapartheid government, 55,000 farmers still own more than 80 per cent of the land, some of
which is not being productively used." Id.
216. Id.
217. Jacobs et al., supra note 160, at 5.
218. Sihlongonyane, supra note 210, at 150-52. Note that women's' ability to purchase
land is limited because the market is an area reserved predominantly for men. Id. at 151.
2007]
principle., 219 This approach presents a problem; land prices are often inflated
and after a buyer purchases land they are left with few resources with which to
220
improve the land by way of building homes and engaging in farm production.
Another reason offered to explain the failure of land reform efforts is the
lack of connectivity between the Department of Land Affairs (DLA) and other
departments in the government.22' Ultimately, this has resulted in land reform
losing importance on the country's "political agenda., 222 There are various
groups 223 maintaining efforts to resolve land issues; however, the fight for land
reform is "fragmented. 224 The lack of cohesion and organization between
these groups results in a lack of structure or coherent means by which to pursue
goals to reform land in South Africa.225
Additionally, the government has by and large failed to consider the
needs of its people.226 Land reform should be applied gradually and flexibly,
while at the same time keeping in mind those that are "intended to benefit"
from the land reform programs.227 Furthermore, it is argued that the failure to
educate individuals in the area about land reform and
the ways by which it
22
should occur has aided in the failure of the program.
8
V. LAND REFORM IN ZIMBABWE
A. History of Dispossession
In 1895, Zimbabwe was called Rhodesia, after Cecil Rhodes, 229 and was
219. Id. at 150. This method is dependent on current owners voluntarily selling their land.
Jacobs et al., supra note 155, at 3.
220. See Sihlongonyane, supra note 210, at 150. Furthermore, land is advertised as farm
land, yet it has "low agroecological value" because it was destroyed by white farmers during
apartheid. Id.
221. Id.
222. Id. "More fashionable and politically rewarding issues, such as HIV/AIDS, poverty
and the environment" have taken precedent over land issues for NGOs (non-governmental
organizations). Id. at 158.
223. Id. at 153. These groups include the Association of Rural Advancement (AFRA), the
Surplus People's Project (SPP), the Transvaal Rural Action Committee (TRAC), and the Border
Rural Committee (BRC). Id. These organizations are affiliated with one another through an
organization now called the National Land Committee (NLC). Id.
224. Id. at 158.
225. Id.
226. See id. at 159. Instead the government has chosen to focus on the market aspect when
dealing with land issues. Id.
227. See Martin Adams et al., Land Tenure Reform and Rural Livelihoods in Southern
Africa, NAT. RESOURCES PERSPECTIVES (1999), availableat www.odi.org.uk/nrp/39.html. For
example, in some areas land seizure may be the best option, while in other places negotiation
may be most appropriate. Sihlongonyane, supra note 210, at 159.
228. Id. at 160.
229. Country Review - Zimbabwe, EBSCO, www.iucat.edu.iu.edu (2005) [hereinafter
[Vol. 17:2
considered a "British sphere of influence" because the British South Africa
Company (BSAC) administered development of the area.230 By 1898, Britain
required the BSAC to create communal areas for the native people of the
land. 23 1 Thus, "Native Reserves" or "Communal Areas" were developed for the
indigenous people. 232 Despite the limitations on the Native Reserves created
for the indigenous people, there was still "adequate land for cultivation, grazing
and watering. ,,233 As the BSAC began to realize that agriculture in Rhodesia
could be highly profitable, however, it quickly began divesting the natives of
lands and placing the land into the hands of white colonists.234 By 1923, the
number of white colonists had significantly increased, and they were given the
choice to join the Union of South Africa or become "a separate entity within the
British Empire. 235 They rejected incorporation with the Union of South Africa
and, ultimately, the United Kingdom took possession of the area.236 Rhodesia
developed into "an internally self-governing colony with its own legislature,
civil service, armed forces and police. 237
In 1934, land apportionment acts created land reserved only for
Europeans. 238 These acts enabled Europeans to take over almost one third of all
the land in Rhodesia. 239 Britain pressured Rhodesia to implement majority
rule; 24 ° however, Rhodesia "showed little willingness to accede to African
demands for increased political participation. 2 4' In 1965, Ian Smith became
the Prime Minister of Rhodesia and "declared white dominance would be
preserved 'for a thousand years."' Later that year, extensive negotiations took
place between Britain and Rhodesia.242 These negotiations, however, were
fruitless and merely resulted in Prime Minister Smith issuing a "Unilateral
Country Review]. Rhodes priginally moved to Africa as a teenager to live with his brother.
MSN
Encarta,
Cecil
Rhodes,
http://encarta.msn.comencyclopedia_761566082/RhodesCecilJohn.html (last visited Mar. 22,
2007). In 1870, "[d]iamond fields were discovered" in the area "and Rhodes became a diamond
prospector. By the time he was 19 years old he had accumulated a large fortune." Id. Rhodes
later became one of the "main promoters of British rule in southern Africa." Id.
230. Id. Rhodes was able to procure a "concession for mineral rights from local chiefs."
Id.
231. Arnold Sibanda, The Millennium Land Policy and the Economics of Farm
Occupations by War Veterans in Zimbabwe 3 (Working Paper, June 2000).
232. Id.
233. Id.
234. Id. at 3; see also Country Review, supra note 229, at 7.
235. Country Review, supra note 229, at 7.
236. Id.
237. Id.
238. Id. Essentially, Whites had "'their pick of the land."' BERTUS DE VILLIERS, LAND
REFORM: ISSUES AND CHALLENGES 5 (2003).
239. Country Review, supra note 229, at 8. It is estimated that "[b]y the end of colonial
rule 42% of the country was owned by 6,000 [white] commercial farmers." DE VJUJRS, supra
note 238, at 6.
240. Country Review, supra note 229, at 8.
241. Id.
242. Id.
20071
243
Declaration of Independence (UDI) from the United Kingdom.
The native Africans of the area grew weary about their minority status
and lack of political participation and formed groups in an effort to end
colonialism. 244 Two of these important groups were the nationalist Zimbabwe
African National Union (ZANU) and Zimbabwe African People's Union
(ZAPU).24 5 Prior groups focused on political activity, but these new
organizations instead concentrated on military activity. 246 In late 1965, the
United Nations intervened and declared UDI illegal.247 In late 1966, the United
Nations for the first time "imposed mandatory economic sanctions on a state"
when it prohibited most trade and investment with Rhodesia.24 8
Because of pressure from "embargo-related economic hardships" and
"anti-government guerilla activity" by ZAPU and ZANU, Prime Minister Smith
agreed to majority rule and to meet with Black Nationalist leaders in Geneva in
1976.249 By April 1979, the first black Prime Minister, Bishop Muzorewa, was
elected to "Zimbabwe-Rhodesia."
The Lancaster House agreement, signed on December 21, 1979, called
for a "ceasefire, new elections, a transition period under British rule and a new
constitution implementing majority rule while protecting minority rights. 25 ° 2In
addition, the "agreement held that the country's name would be Zimbabwe. , 11
Robert Mugabe won the elections in 1980 and formed "Zimbabwe's first
government. ' ' 252 Prime Minister Mugabe stated that "his government would
begin investigating ways of reversing past discriminatory
policies in land
distribution, education, employment, and wages." 253
B. Land Reform
"Since 1890 up to today, the land question has singularly had the most
significant impact on Zimbabwe's political and economic history."254 Most
recently, the Land Resettlement Program, developed after Zimbabwe's
243. Id. "The British government considered the UDI unconstitutional and illegal but at
the same time made clear it would not use force to quell the rebellion." Id.
244. See id.
245. Id.
246. Id.
247. Id. Britain "imposed sanctions on Rhodesia and requested other nations to do the
same." Id.
248. Id.
249. Id. at 8-9. The Black leaders in Geneva included the leaders of ZAPU and ZANU and
leaders of other organizations. Id. at 9. The guerilla conflict resulted in the deaths of over
20,000 people in the years between 1972 and 1979. Id.
250. Id.
251. Id.
252. Id.
253. Id.
254. LAND REFORM IN ZIMBABWE, supra note 166, at 187. In 1888, Rhodesia "was
proclaimed a British sphere of influence," which was a monumental event in the country's
history. Country Review, supra note 229, at 7.
[Vol. 17:2
independence in 1980, has had mixed reviews. 5 One position is that the
program has "resulted in one of Africa's most successful examples of land
redistribution.2 5 6 The other position is that the land reform program in
Zimbabwe has been disastrous to the country and its economy. 25 7 According to
some sources, a total of over 3.5 million hectares of land have been resettled. 58
But, "[tihere is considerable controversy on the number of people who have
[actually] been allocated land. 259
Between the years of 1980 and 1990, Zimbabwe adhered to a model
based upon a "'willing-buyer, willing seller' basis," which was an idea based
on the Lancaster House Agreement. 26 0 During the 1980s, the country had a
goal to resettle approximately 162,000 families. 261 Despite the country's
success in resettling approximately "58,000 [families] on 3 million hectares of
land, [and] reducing the white commercial farming sector to... 29 per cent of
agricultural land," the country fell short of its goal.262 Furthermore, a survey of
people resettled onto new land found that those people regarded it as a "'mixed
blessing', and [for the] most [part] felt their families were worse off than those"
still living in communal areas.263
Shortly thereafter, the 1992 Land Act passed; this Act introduced
procedural changes, reduced the size of farms, and created a land tax.264 The
Act was created in response to criticisms brought in the 1980s that land reform
was progressing slowly due to its basis on market-driven land reform.265 With
this new Act, however, came new criticisms. 66 These new criticisms focused
on the impacts of land reform on the economy, and "argument [ensued] over
who was receiving the land., 267 Evidence indicates that many people who
received land during this time were "political associates and supporters" of
255. See SITHOLE & RUSWA, supra note 179.
256. LAND REFORM IN ZIMBABWE, supra note 166, at 187.
257. See SrrHOLE & RUSWA, supra note 179.
258. DE VILLIERS, supra note 238, at 20.
259. SITHOLE& RuSWA, supra note 179, at 10.
260. LAND REFORM INZIMBABWE, supra note 166, at 2.
261. Sihlongonyane, supranote 210, at 173. "The 1979 Lancaster House Agreement had
provisions that restricted the government from acquiring land for a period of 10 years." SrrHOLE
& RUSWA, supra note 179, at 1.
262. Sihlongonyane, supra note 210, at 173. Furthermore, it is important to note that the
land resettled this time was primarily of "low agro-ecological value." Id. Additionally, some of
the land acquired during this time was "land that had been abandoned by white landowners in
liberated zones of the war, and hence was more easily acquirable." Id. at 183.
264. Id. at 2. One procedural change was for land acquisition to be compulsory. Id. In
addition, there was "less certainty over what compensation would be paid for land acquired."
Id. However, there was still legislation that enabled landowners legal recourse and the "willingbuyer, willing seller method" was not renounced. Sihlongonyane, supra note 210, at 176.
265. Sihlongonyane, supra note 210, at 176.
267. Id.
2007]
Zimbabwe's prime minister, Robert Mugabe.268 This claim was confirmed
when the Utete Commission 269 was appointed and there was a call for "ruling
party 'chiefs', who were largely the multiple farm owners, to surrender
additional farms., 270 This order showed that it was not "ordinary poor people"
who were reaping the benefits of the land reform program. Instead it was the
region's elite and those with political connections who were the primary
beneficiaries of the recent land reforms. 2 7'
By 1997, the economy of Zimbabwe was in sharp decline.2 72 A
conference with donors to Zimbabwe's land reform program was held in 1998
to determine methods by which to "provide land to the landless., 273 At the
conference, it was decided that Zimbabwe would "proceed with both
compulsory and market acquisition" methods of obtaining land.274 The
government failed to follow through with these objectives and little occurred
between 1998 and 2000 to accelerate land reform. 27 5 Despite this stagnant
period, land reform quickly was back on track a short time later; by 2002 the
government claimed it had "compulsorily acquired some 10 million hectares of
land - approximately 90% of white commercial farmland - and redistributed
most of it to 127,000 peasant households and 8,000 middle capitalist
farmers. 276
Despite numbers and statistics given by the Zimbabwe government that
tend to indicate the land reform program was successful, the opinions 278
of
277
survey
A
view.
different
a
very
indicate
generally
Zimbabweans
ordinary
in 2003 identified many shortcomings and problems associated with the land
reform program in Zimbabwe. First, "the majority of beneficiaries" of the land
reform program were people between the ages of forty and fifty.279 Individuals
268. Id.
269. See generally SrrHoLE & RuSWA, supra note 179.
270. Id. at 10.
271. Id.
275. Id. The government continued to ask the people without land to wait. Id.
276. Id. at 188. The country's land reform policies in the late 1990s and early 2000s have
been highly criticized because these policies involve a "framework that enables the taking of
land without due process." DE VIIIkERS, supra note 238, at 20-21. In addition, thousands of
farms are occupied by rebel groups and the country has failed to address this problem. Id.
"[T]he government has revised the constitution and amended legislation in order to allow it to
acquire commercial farms compulsorily and without compensation." Human Rights Watch,
Fast
Track
Land
Reform
in
Zimbabwe
(2002),
available
at
http://www.hrw.org/reports/2002/zimbabwe/.
277. See generally, SrrHoLE &RUSWA, supra note 179.
278. Id. at 2. The survey was distributed randomly to 1445 people. Id. It was "divided
between males and females and between urban and rural residential areas in proportion to their
percentages in the national population." Id. The major limitation of the survey was that people
were reluctant to answer some of the questions because of fear of government retaliation. Id.
279. Id. at 11.
IND. INT'L & COMP.
L. REv.
[Vol. 17:2
between the ages of eighteen and twenty-four, the future generation of the
country, received the least amount of land.28° Second, survey participants
indicated that land may have been allocated, but that it was not actually
occupied. 281 There are several reasons why individuals failed to occupy
allocated land: lack of resources, poor infrastructure, drought, government
corruption, and court disputes.282 Third, "one of the strongest criticisms of the
land reform process in Zimbabwe was its negative effect on production. 283
Lastly, many people believed and still continue to believe that the decline in the
country's economy is a direct result of the failed land reform program.284
Likewise, a report produced in 2000 described the situation in Zimbabwe
as a country in complete despair. Specifically, it reported that the land reform
program was without regard for "law, order and authority. , 285 The report noted
the "key industrial index of the Zimbabwe Stock Exchange (ZSE) sunk to a 4
month low" during March of 2000.286 Furthermore, there were a number of
farm occupations occurring and most foreign aid from donor countries had been
suspended.287 With regard to farm occupations, in 2001, a white farmer
reported to CNN that "150 black demonstrators overran his farm ...
they
[seized] the land and warned him not to plant any new crops... [t]he occupiers
[planted] almost 90 percent of his fields.., and [t]he future of his farm and the
more than 300 people he [employed hung] in the balance. ,,288 This is just one
example of over two thousand farm occupations that have occurred.28 9
There are still many discrepancies in the degree of success of
Zimbabwe's land reform program. If the data and statistics released by the
government are accurate, then the Land Resettlement Program in Zimbabwe is
"one of Africa's most successful examples of land redistribution.,, 290 Yet,
surveys and accounts by people living in Zimbabwe suggest something quite
280. Id.
281. Id. at 13.
282. Id. Allocated land often was not occupied because of legal complexities, which
resulted in court litigation. Id. This left "farmers reluctant to occupy and invest on the farms."
Id.
283. Id. at 15. There are many reasons for loss of production: "non availability of fuel,"
farmers' inability to receive credit, and "lack of farming skills among the resettled farmers." Id.
284. Id. at 26. The Utete Commission, however, contends that the "economic problems in
Zimbabwe are not linked to the fast track land reform exercise." Id.
285. Sibanda, supra note 231, at 11. But see Bob Coen, Zimbabwe's Land Reform Still
Controversial,
CNN,
Feb.
9,
2001,
http://archives.cnn.com/2001/WORLD/africa/02/09/inside.africa,
reporting that "[t]he
government says the program is organized and sustainable."
286. Sibanda, supra note 231, at 11.
287. Id.
288. Coen, supra note 285 (noting the "government [denied] any involvement in the
lawlessness on farms like" the one described in the text). Id.
289. Id.
290. LAND REFORM IN ZIMBABWE, supra note 166, at 187 (finding "[n]o other African
country has acquired [3.3 million hectares] of land from private landowners and re-distributed it
to the poor and landless."). Id.
2007]
different, painting a picture of mass devastation directly linked to the
implementation of land reform.291
Nevertheless, many Zimbabweans believe that land reform and
redistribution was necessary and remains necessary for the future of the
country.29 2 But, land reform programs and redistribution of land in the future
will have to use new methods.293 Many Zimbabweans found that the Land
Resettlement Program was carried out in a way that tended to "punish whites"
and enrich those politically aligned with Prime Minister Mugabe. 94
Additionally, land occupations were found to be a negative aspect of land
reform in Zimbabwe. Land occupations began after the 1998 conference and
resulted in "over a hundred politically related deaths between 2000 and
2002.'z95
Zimbabwe continues to suffer with "inequities in land distribution,
poverty, and unemployment problems. 296 Even if the land reform program is
not the sole cause of Zimbabwe's economic problems, it has certainly
"exacerbated" the problem and consequently "decreased agricultural production
and tourism revenues" for the country.297
VI. MEASURES ALREADY TAKEN TO RESOLVE LAND ISSUES IN EAST
TIMOR
298
East Timor has already started the process of resolving land issues.
The country adopted its constitution on March 22, 2002.299 In its Constitution,
Timorese by
East Timor provided a safeguard to ensure land for East
3° °
"reserv[ing] land ownership for East Timor citizens only."
291. See generally SITHOLE AND RUSWA, supra note 179.
292. Id. at 16.
293. Id.; see also Robin Palmer, Mugabe's Land Grab in Regional Perspective,Conference
on Land Reform in Zimbabwe - The way Forward, at 1, for the following list of problems
associated with the land reform program in Zimbabwe: "[l]ack of funds, lack of planning, lack
of capacity, [and] lack of accountability."
294. SITHOLE AND RUSWA, supra note 179, at 16.
295. Id. at 187-88. Land occupations grew much stronger in 2000. Id. at 190. The
occupations "focused on white farms, but also sporadically on farms owned by black capitalists
and the political elite." Id. See also Fast Track Land Reform in Zimbabwe, supra note 276,
stating "[t]he police have done little to halt such violence, and in some cases are directly
implicated in the abuses." Id.
Brief,
Country
Zimbabwe
Bank,
World
296. The
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/ZIMBABWEEX
TN/0,,menuPK:375746-pagePK: 141132-piPK: 141107-theSitePK:375736,00.html (last visited
Mar. 22, 2007) [hereinafter World Bank Website].
297. Id.
298. See, e.g., XAVIER, supra note 75.
299. CONST. OF THE DEMOCRATIC REPUBLIC OF E. TIMOR (2002).
300. USAID/East Timor, New Computer Database Helps Sort Land Claims Appraisal,
(Dec. 14, 2004), http://timor-leste.usaid.govlPrintVersion/EGArchive l7Print.htm [hereinafter
New Computer Database]; see also CONST. OF THE DEMoCRATIc REPUBLIC OF E. TIMOR § 54.
IND. INT'L & COMP.
L. REv.
[Vol. 17:2
In March 2003, the government implemented Law 1/2003 that designated
the Ministry of Justice's Directorate of Land and Property (DNTP) as the
30 1
department having authority over land and property matters in East Timor.
Additionally, this law mandated a timeframe in which land claims were to be
made. 302 March 2004 served as the deadline for land claims. 303 In December
2004, a database was developed to help resolve the over 10,000 claims for land
that were filed. 304 The database enables DNTP to analyze the various claims
and determine "overlapping or conflicting" claims.3 °5 DNTP has been able to
solve approximately fifty claims for land. 3°
In February 2004, a report by the Timor-Leste Land Law Program,
entitled "A Legal Framework on Land Dispute Mediation," was released to the
government. 30 7 This report provided the government with "extensive data,
detailed analysis, and a mediation mechanism for land disputes based on field
research in all 13 of East Timor' s districts, more than a third of its sub-districts,
and 10 percent of its villages." 30 8 Additionally, an organization called Land
Law Program of Associates in Rural Development, Inc. (ARD), was
formed to
'3 9
assist East Timor in establishing a "land-tenure research center. 0
In December 2004 and September 2005, the East Timorese government
passed laws regarding the leasing of land.3 10 Specifically, these laws set "the
minimum conditions of lease agreements of private property between
individuals., 311 These laws were necessary due to the lack of certainty in
protection of private property and the government's inability to resolve the
thousands of land claims.312 Thus, the country is engaging in the leasing of
301. XAVIER, supra note 75. The DNTP's duties include: "legislation and policy
proposals, land dispute resolutions, administration of state land assets (immovable property),
administration of abandoned property, cadastral survey and mapping, land registry (tfles office),
valuation and future taxation, [and] national mapping." Id. In Portugal the DNTP is Direccdo
Nacional de Terras e Propriedades in Portuguese. Id.
302. Id.
303. New Computer Database, supra note 300.
304. Id. Approximately 5781 claims came from people in East Timor, and 6548 claims
came from people in Indonesia. Xavier, supra note 75.
305. New Computer Database, supra note 300.
306. Id.
307. TtMOR-LESTE LAND LAW PROGRAM, REPORT ON RESEARCH FINDINGS AND POLICY
RECOMMENDATIONS FOR A LEGAL FRAMEWORK FOR LAND DIsPuTE MEDATION (2004),
http://www.jsmp.minihub.org/Traditional%20Justice/Reports/LLPMediation%2Report/LLP
MediationReportEnglish.pdf [hereinafter A LEGAL FRAMEWORK]; see also USAID/East Timor,
New Study Documents Land Dispute Mediation, (Apr. 9, 2004), http://timorleste.usaid.gov/EGHighlightsArchives/EGArchive9.htm [hereinafter New Study].
308. USAID/East Timor, Report Findings Help the Government Tackle Land Dispute
Legislation,
(May
5,
2004),
http://timorleste.usaid.gov/EGHighlightsArchives/EGArchivel0.htm [hereinafter Report Findings Help].
309. New Study, supra note 307.
310. XAVIER, supra note 75.
311. Id.
312. See generally id.
2007]
property until land ownership can be ascertained. 1 3 The conditions for a lease
agreement are: "[riesidential use; [n]ational citizen; [p]roperty occupancy since
2000; [d]eveloped property;... automatic [m]onthly rent of US $10 [sic] (ten
1 year lease agreement," with automatic renewal for an
American dollars);
314
additional year.
In the future, East Timor anticipates restoring private property, but first
must determine which land titles it will recognize. 3 15 Furthermore, the East
Timor government realizes that it needs to become a self-sufficient country:
since "[d]uring the Indonesian occupation, East Timor was a dependent
economy. ' 3 16 This requires that East Timor restore its agricultural abilities; "for
the past 3 decades the economy of East Timor has been structured in such a
way so it has not been self-sufficient even in food. 317 The country is looking
forward to the future and anticipating a time when it will no longer receive
that "donor
donor assistance. 3 18 Senior economist Jose Garcia-Medrano 3stated
19
assistance will be replaced in part by" oil and gas revenues.
VII. RATIONALES FOR LAND REFORM IN EAST TIMOR
Even though East Timor has implemented different programs and
departments to begin resolving land claim conflicts, it is unclear if the methods
the country is engaging in are long-term fixes or short-term solutions. 320 "Land
reform is a long-term process" that might allow East Timor to reap long-term
benefits. 32' Although land reform has not been successful everywhere, it has
had positive effects on the state of land tenure in many areas.322 Because East
Timor land tenure systems are in a state of chaos, land reform might be the best
313.
314.
315.
316.
See id.
Id.
See generally FITZPATRICK, supra note 7, at 2.
Stephanie Fahey, The Future of East Timor: Threatsand Opportunitiesfor Economic
Development of a Small Island State, UNIVERSIDADE NOVA DE LISBOA SYMP. ON E. TIMOR,
INDON. AND THE REGION (2000), http://www.riap.usyd.edu.au/research/publications/ETimor.htm.
317. Id.
318. USAID/East Timor, Macroeconomics Policies Promote Economic Growth and
2004),
http://timorPoverty
Reduction,
(Dec.
16,
[hereinafter Macroeconomics
leste.usaid.gov/EGHighlightsArchives/EGArchivel 8.htm
Policies].
319. Id. Garcia-Medrano notes that East Timor faces the challenge of conserving its
resources of gas and oil, so as to save the resource for future generations. Id. In 2000, East
Timor signed an agreement with American, Japanese, and Australian oil companies. Gunn,
supranote 22, at 239. Drilling was to begin in 2004. Id. This was the "largest investment ever
made in East Timor" to date and provided a "$1.4 billion investment in gas recycling." Id.
320. See, e.g., XAVIER, supra note 75.
321. LAND REFORM INZIMBABWE, supra note 166, at 188. "[It] is important that the work
that we do in this field is not wasted in short term measures, and that we think clearly about
leveraging the short term interventions we make into longer term impacts." LEWIS, supra note
59, at 14.
322. See DEKKER, supra note 7, at 79, 103; see also id. at 88-102 (explaining land reform
programs in various regions of the world).
[Vol. 17:2
solution.3 23
It is important to remember that land reform programs should be created
specifically for a country in order to fit that country's unique needs. 324 East
Timor can learn plenty from other countries that have engaged in land
reform. 325 The failures experienced by Zimbabwe and South Africa can help to
indicate the shortcomings of certain methodologies. 326 Furthermore, the
successes of these countries demonstrate what could potentially work well for
East Timor.327
Regardless of which country's methods East Timor chooses to study
when ascertaining ways to resolve its land problems, it should consider land
reform as a viable option.328 Moreover, the country needs to bear in mind that
short-term fixes are not the best solution. 329 An unstable land tenure system
will continually inhibit the country from sustaining prosperous economic and
social conditions because "'nothing evokes deeper passions or gives rise to
more bloodshed 'than
do disagreements about territory, boundaries, or access to
330
land resources.'
A. The Ways East Timor Could Benefitfrom Land Reform
The benefits that East Timor could reap from land reform are plentiful.3 3'
On the most basic level, land reform could serve "to resolve the overlapping
and competing tenure rights of people" by redistributing the land.332 Thus, East
Timor's dilemma of ascertaining what land title claim to recognize could be
solved by land reform.33 3
A redistribution of the country's land would provide property ownership
to a large number of peasants who are currently illegally possessing land.334
Redistribution could also result in a more equal distribution of land.335 This
would likely prevent militia and rebel upheaval in the future; evidence indicates
that militia violence often occurs because of inequality of land ownership or
323. See generally FTZPATRICK, supra note 7. Contra FITZPATRICK, supranote 12 (finding
that the creation of a new system of land tenure may not be the best option).
324. See generally DEKKER, supra note 7, at 78.
325. See id. at 88-102 for a discussion of land reform programs implemented in other
countries.
326. See generally Sihlongonyane, supra note 210.
327. See supra pp. 23-43.
328. Contra FITZPATRICK, supra note 12 (discussing the disadvantages of land reform).
329. See LEWIS, supra note 59, at 14.
330. Id. at 5. "Post-conflict experiences regularly demonstrate that land and property
issues can provoke secondary conflicts." Id.
331. See supra note 154 and accompanying text.
332. LUNGISiLE NTSEBEZA, LAND TENURE REFORM, TRADITIONAL Au oRrrl s AND RURAL
LOCAL GOVERNMENT IN POST-APARTHEID SOUTH AFRICA: CASE STUDIES FROM THE EASTERN
CAPE 39 (1999).
333. See id.
334. See id.
335. DEKKER, supra note 7, at 77.
2007]
lack of access to land.336 Additionally, a redistribution of land would enable the
country to make good use of abandoned land.337
Economically, land reform could help the country become more self339
sufficient. 338 Traditionally, East Timor has been an agricultural country,
however, it failed to meet its agricultural potential during the Indonesian
occupation. 34 The country must start harvesting more crops, not only to
provide food for East Timorese, but also to potentially export to other
countries. 34 1 For example, coffee is East Timor' s "main potential export crop
.. . [but] coffee trees have not been adequately cared for over the past 20
years." 342 Approximately 20,000 of East Timor's 30,000 hectares of coffee
plantations were "taken over by the Indonesian government" or were put in the
hands of large companies.343 The lack of certainty surrounding land titles has
had a momentous effect on East Timor's prominent export product.3 "
Additionally, "East Timor has the capacity and experience to produce
livestock for export. 3 45 Studies demonstrate that people with certainty of land
title use the land more efficiently. 346 By redistributing the land, placing
individuals on property, and granting these individuals legal title to property,
the country's agricultural strength might be restored. 347 East Timor's economy
will also benefit from foreign investment; 348 however, foreign investors do not
want to enter a country where land title is uncertain. 349 Land reform can
350
provide this certainty.
There are numerous benefits that can derive from land reform. 35' First, it
is important to understand the needs of the country when creating a land reform
program.352 Specifically, East Timor has a large amount of communal land,3 53
so the country must be sensitive in attempting to title this land.354 The
336. See, e.g., LAND REFORM IN ZIMBABWE, supra note 166, at 8.
337. FrrzpATRICK, supra note 12.
338. See, e.g., Gunn, supra note 22, at 238.
339. Fahey, supra note 316; see also Gunn, supra note 22, at 238 (noting there is an
"untapped potential in the agricultural sector").
340. See LEWIS, supra note 59, at 9.
341. Gunn, supra note 22, at 237-38.
342. Fahey, supra note 316.
343. Gunn, supra note 22, at 238.
344. Id.
345. Id. East Timor has a "vast southern rangeland" that is ideal for producing livestock.
Id.
346. See FrrZPATRICK, supra note 7, at 169.
347. See id. at 169-70.
348. Id.
349. See supra note 139 and accompanying text.
350. See NTSEBEZA, supra note 332, at 39.
351. See DEKKER, supra note 7, at 103, for a discussion of "[i]mpressive land reforms
[that] were carried out in Japan, Taiwan, South Korea, Egypt, Iraq, and Israel."
352. Id. at 80.
353. FrrzPATRICK, supra note 7, at 167.
354. See generally id. (discussing the different land titles that East Timor could recognize).
IND. INT'L & COMP.
L. REV.
[Vol. 17:2
successes and failures of other countries' land reform programs can help
provide information as to how land reformation should be accomplished.
B. Lessons Learnedfrom South Africa
A major problem in South Africa's land reform program was a lack of
connectivity with other departments in the government. 355 This demonstrates
the need to weave a land reform program into different governmental
departments and agencies. 356 To avoid the problem encountered by South
Africa, East Timor should take active measures to ensure that the Directorate of
Land and Property (DNTP) remains closely associated with other departments
in the government.357
Additionally, the land reform program could require departments other
than the DNTP to perform certain functions or duties relating to land reform.358
Ultimately, this would ensure that the land problems facing the country do not
disappear from the country's agenda. 359 To date, it appears that resolving land
issues has been an important task for East Timor officials; they have continually
sought out new laws and organizations to help resolve these problems. 360 Still,
measures should be taken to ensure that the land tenure system remains of
utmost importance.
South Africa's land reform program failed to take into account poverty,
food shortage, and unemployment. 361 Instead, the country focused solely on
resettling families with no concern for how these families would survive once
on the land.362 East Timor can learn from this deficiency within the South
African land reform program. To prevent people from obtaining property
without proper funding to build a house or work the land, money from foreign
donors could be loaned to new land owners through a loan system using the
"land as collateral. 36 3 In addition, programs could be implemented to teach
new landowners, specifically new farmers, how to use their land productively
and in ways that do not ruin the land.3 6 4 By providing this service to new
landowners, food shortages could be prevented, ultimately helping the economy
and decreasing poverty in East Timor.365
As a whole, the land reform system in South Africa did not consider the
356. See id.
357. See generally supra p. 27 (explaining South Africa's problems with government
departments not remaining connected with one another).
358. See, e.g., Sihlongonyane, supra note 210, at 151.
360. See XAVIER, supra note 75.
361. Sihlongonyane, supra note 210, at 151. Zimbabwe also experienced this problem.
LAND REFORM IN ZIMBABWE, supra note 166, at 187-88.
363. DEKKER, supra note 7, at 81 (making this suggestion).
364. Id. at 81; see also LAND REFORM IN ZIMBABWE, supra note 166, at 127.
365. See DEKKER, supra note 7, at 81.
2007]
needs of its people. 36 6 Instead, it attempted to apply one uniform method across
the entire region. 367 Certain areas often may require specific, individualized
methods to solve land disputes, be it through negotiation, mediation, or land
seizure.368 The failure to employ the correct method can result in a tense
environment; 369 evidence exists that indicates East Timor is cognizant of this
problem. 370 In February 2004, the Timor-Leste Land Law Program released an
extensive report on different policies to handle land disputes. 37 1 The research
considered the culture, subjects, and geographic nature of many different
regions in the country when suggesting methods to mediate land disputes.37
Overall, it looks as if East Timor has already taken into account many
issues that South Africa failed to address.373 It is important, however, for East
Timor to continue its efforts. Additionally, if the country were to create a land
reform program, it would be important for it to integrate its current efforts into
the program.
C. Lessons Learnedfrom Zimbabwe
Zimbabwe's land reform program has been widely criticized because it
takes a "top-down, directive, controlling approach which assumes that officials
know best and that peasants and pastoralists need to be told what is best for
them. 3 74 Thus, it has been suggested that consultations should take place prior
to the commencement of a land reform program. Such consultations should
take place with the "commercial farmers, the landless, traditional chiefs,
375
prospective farmers, financial institutions, farmers' union and industry."
Consultations would enable more people to have a voice and give the
government a better idea of the interests of everyone involved.3 76
Zimbabwean surveys indicate the methods and procedures of land
selection were unfairly discriminatory.3 77 Many argue that political allies of
Prime Minister Mugabe have been the primary beneficiaries.378 East Timor
could avoid this problem by implementing an impartial lottery system or some
other methodology, which does not give preference to the elite and political
366.
367.
368.
369.
370.
Sihlongonyane, supra note 210, at 159.
Id.
Id.
DEKKER, supra note 7, at 102-07.
See, e.g., XAVIER, supra note 75.
371. A LEGAL FRAMEWORK, supra note 307. The research for this report was funded by
USAID. Id.
372. Id.
373. See generallyXavier, supra note 75 (providing new laws and polices implemented by
East Timor).
374. Palmer, supra note 293, at 5.
375. SrrHoLE & RUSWA, supra note 179, at 30.
378. Id. at 10.
[Vol. 17:2
allies of those in power.379
Zimbabwe made a major mistake at the outset of its land reform
program. 380 The Zimbabwe government set unrealistic goals; the "targets were
381
virtually plucked from the air with little account of the practicality thereof.,
The unrealistic targets came back "to haunt the Zimbabwean government., 382 It
appeared as if Zimbabwe was accomplishing very little because the results
never matched the goals.383 Therefore, it is important to carefully study
a
targets. 384
country's potential before making announcements of projected
Many people criticized Zimbabwe's efforts to boost its economy by
placing restrictions and requirements on resettled lands.385 Such requirements
were often placed on new landowners to produce certain products and to refrain
from certain uses of the land, and leases were contingent upon adherence to
these requirements.386 The new landowners felt they should not have had to
grow specified products for public market. 387 In addition, many disliked that
land was only leased and not sold outright.3 88 These lessees thought it was
unfair to place contingencies on their ability to remain on the land.389
Zimbabwe's preferred reasons for placing restrictions and requirements on
resettled land was to avoid an "economic and environmental disaster" that
many critics of the land reform program predicted would occur.39 °
East Timor could avoid these criticisms by restricting the use of land for
the first year or two of occupancy and thereafter allow individuals to grow
products of their choice. 39 1 During this initial period, ownership could be
contingent upon following restrictions and requirements, but after the initial
period complete ownership could vest in those occupying the land. By
employing this type of system, the government could monitor the economy for a
period of time, while still providing individuals the freedom to produce
products of their choice. These suggestions should be considered by East
Timor when determining the best way to address these issues.392
Some ideological arguments regarding land reform in Zimbabwe center
380. See DEVILLIERS, supra note 238, at 11.
381. Id.
382. Id.
383. Id. South Africa was cognizant of this idea and carefully assessed its land reform
programs' abilities before announcing outrageous goals. See id. at 81.
384. See id. at 81.
385. LAND REFORM IN ZIMBABWE, supra note 166, at 127-28.
386. Id. at 128. See also RICHARDSON, supra note 79, at 145 (finding that when the
government owns land and merely leases it, people "are vulnerable to non-renewal at any
time").
387. See LAND
388.
389.
390.
391.
392.
REFORM IN ZIMBABWE,
Id. at 128.
Id.
Id. at 127.
See, e.g., id. at 126.
See generally id.
supra note 166, at 127-28.
2007]
on the idea "that private property is a near-sacred right" and should not be taken
away from landowners to redistribute to landless individuals.3 93 The main
counterargument to this position is that private property is considered "the
status of foundation of a just and civilized society. ' 394 To hold this promise
means to accept "that private
property cannot perform this noble function if
395
it!"
without
are
people
most
Both Zimbabwe and South Africa were able to "mobilize funds from
donors, philanthropists and other well wishers, and ultimately from the local
financial market., 396 This will likely aid them in buying land and providing
various programs.39 7 The success of any land reform program is dependant
upon a country's ability to finance it with the help of donors. 398 Thus, if
possible it would also be extremely advantageous for East Timor to obtain
financial assistance from donors before implementing land reform.
CONCLUSION
Currently, East Timor's land tenure system is in a state of chaos with
conflicting land titles, squatters, large amounts of abandoned property, and
massive destruction of homes and infrastructure. There are presently four
different types of land claims being brought, and the country is faced with the
difficult task of determining which titles to recognize. While all four land
claims have a basis for recognition under certain legal principles, not all claims
should be recognized for a different set of equitable reasons. Choosing any one
type of land claim could result in a magnitude of difficulties.
East Timor has begun to study its land problems and execute new land
laws, but it still has a long and difficult road ahead. Many of the purported
solutions currently being implemented might only have short-term beneficial
effects. Land reform may be the best option for the country, but East Timor
399
must remember that "[1]and reform is a long-term process, not an event.,
Reforming the land system could greatly help the country's economy, as well as
lead to a more equitable redistribution of land. There is, however, no set
method or program for reforming land that can be adopted. Instead East Timor
must develop a program that specifically fits the needs of its people.4 °°
393.
394.
395.
396.
397.
398.
399.
Id. at 188.
Id.
Id.
Id. at 191-92.
See id.
See id.
Id. at 188.
400. "The challenge for East Timor is to recapture its own identity allowing for the
judicious absorption of remnants of the Portuguese and Indonesian administrations in the form
of language, religion and other behavioural codes." Fahey, supra note 316.

East Timor`s Land Tenure Problems - Robert H. McKinney School of

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